FROM DEEP NORTH TO INTERNATIONAL GOVERNANCE EXEMPLAR
Fitzgeraldʼs Impact on the International Anti-Corruption Movement
Charles Sampford*
In pre-Fitzgerald Queensland, the existence of corruption was widely
known but its extent and modes of operation were not fully evident.
The Fitzgerald Report identified the need for reform of the structure,
procedures and efficiency in public administration in Queensland.
What was most striking in the Queensland reform process was that a
new model for combatting corruption had been developed. Rather
than rely upon a single law and a single institution, existing institutions
were strengthened and new institutions were introduced to create a
set of mutually supporting and mutually checking institutions, agencies
and laws that jointly sought to improve governmental standards and
combat corruption. Some of the reforms were either unique to
Queensland or very rare. One of the strengths of this approach was
that it avoided creating a single over-arching institution to fight
corruption. There are many powerful opponents of reform. Influential
institutions and individuals resist any interference with their privileges.
In order to cause a mass exodus from an entrenched corruption
system, a seminal event or defining process is needed to alter
expectations and incentives that are sufficient to encourage significant
numbers of individuals to desert the corruption system and assist the
integrity system in exposing and destroying it. The Fitzgerald Inquiry
was such an event. This article also briefly addresses methods for
destroying national corruption systems where they emerge and exist.
Introduction
To a liberal observer who was born in Queensland but who grew up in Victoria,
pre-Fitzgerald Queensland appeared to my colleagues and me as the ‘Deep North’
— a democratic enigma characterised by repressive policy and legislation,
succinctly and eloquently described by Colin Hughes:
*
Charles Sampford is Director of the Institute for Ethics, Governance and Law (a joint
initiative of the United Nations University, Griffith, QUT, ANU and the Center for
Asian Integrity in Manila). This article is based on parts of ‘Global Transparency:
Fighting Corruption for a Sustainable Future: From National Integrity Systems to
Global Integrity Systems’, the overall conference discussion paper for the 13th
International Conference Against Corruption in Athens (31 October 2008),
commissioned by Transparency International, and ‘From Deep North to Global
Governance Exemplar: Fitzgerald’s Impact on the International Anti-Corruption
Movement’, paper presented to plenary session, Australian Public Sector AntiCorruption Conference, Brisbane, 30 July 2009. The author wishes to thank Ms Carmel
Connors, IEGL Publications Manager, for her work on the second paper and this article.
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[A] journalist’s catchphrase Australia’s ‘Deep North’ — authoritarian, racist
in its dealings with Aborigines, heavy handed to the point of violence in its
dealing with political dissidents, vulnerable to the pressures of multinational
mining groups, and right wing groups opposed to liberal social trends, which
have been at work in post war Australia, sensitive to states’ rights and deeply
suspicious of national politicians and bureaucrats to the point of employing
the antiquated machinery of the imperial connection with London against
changes coming out of Canberra, ready even to contemplate secession from
the Commonwealth of Australia.1
Queensland was a state that had had a one-house parliament since 1922 and
lacked an independent parliamentary committee system to oversight the operations
of government. By the time Bjelke-Petersen was elected Premier in 1968, the fourzone gerrymander, set up by the ALP when in office and bitterly criticised by the
then Country Party, was retained and refined into the most potent electoral weapon
in the nation.2
Distinctive characteristics of the Bjelke-Petersen premiership were the close
personal links between business and politics and a political culture that was
autocratic, authoritarian, racist and oppressive.3 The modus operandi of government
included a laissez-faire attitude to development unencumbered by environmental or
moral constraints, a police force that was viewed as an extension of government, a
vicious administration that ruined the lives of tens of thousands of people such as
Aborigines and Torres Strait Islanders, civil libertarians and trade unionists, as well
as ordinary citizens — including small-l liberals who had the audacity to oppose his
administration — a blatant use of religion, and a patent disregard for the doctrines
of ministerial responsibility or the separation of powers.4
Supporters of Sir Joh point to the rapid development of Queensland during his
record 19-plus years as Premier:
Throughout his premiership Bjelke-Petersen and his government sought to be
perceived as forcefully promoting Queensland’s economic development and
its status as the last bastion of free enterprise, at the same time staunchly
5
protecting and defending the state’s moral and political values.
The existence of corruption was widely known during this period, but its
extent and modes of operation were not fully evident; when uncovered by the
Fitzgerald Inquiry, Sir Joh’s premiership was found to have ushered in a culture of
1
2
3
4
5
Hughes (1980), p 10.
Stanaway (1987), p 5. After analysing the results of the 1974 election and determining
the uniform swing required to change government, a colleague and I were surprised to
find what is now called a ‘two-party preferred vote’ of around 50 per cent would have
caused a change of government. We then realised that the gerrymander was primarily
directed at the Liberal Party to ensure that the National Party would dominate the
Coalition even when it won significantly fewer votes.
Walter (2003).
Fitzgerald (2005), p 14.
Coaldrake (1989), p 3.
SAMPFORD: FROM DEEP NORTH TO INTERNATIONAL GOVERNANCE EXEMPLAR
561
corruption that some critics believe only paralleled that of the New South Wales
Rum Corps almost 200 years ago.6 At the time, it may have appeared as a surreal
period in Australia’s political history — though examination of other systems
indicates that we should not give Joh and his colleagues any back-handed medals
for originality.
A New Model for Fighting Corruption: From the Hong Kong Model to
the Queensland Model
Twenty years ago, the Hong Kong model (a strong law and a powerful anticorruption agency) was the preferred model for fighting corruption. In 1988, the
election of a Coalition government under Nick Greiner brought a new broom
sweeping through public administration in New South Wales.7 The result was the
Independent Commission Against Corruption, Australia’s first dedicated corruption
watchdog. This ‘watchdog body’ was created just months before the Report of a
Commission of Inquiry Pursuant to Orders in Council (the Fitzgerald Report) 8 was
handed down. The report’s 121 recommendations contained Fitzgerald’s vision for
reform. Electoral and administrative, criminal justice, and police were the three
areas on which the recommendations were structured. The major recommendations
of the report were the establishments of the Electoral and Administrative Review
Commission (EARC) and the Criminal Justice Commission (CJC), restructuring of
the Police Department along regional lines, ‘scrapping’ of the Police Department’s
Internal Investigation Unit, abolishing the police Complaints Tribunal, and revising
police rules compelling police to report misconduct to the CJC on a confidential
basis.9 Fitzgerald recommended that EARC and the CJC report to Parliamentary
Select Committees.
In his report, Tony Fitzgerald identified the need for reform of the structure,
procedures and efficiency in public administration in Queensland. To provide a firm
foundation for his reform, Fitzgerald’s recommendations included the creation of a
new body whose role was to discharge those criminal justice functions not
appropriately carried out by police and other agencies. This body was the Criminal
Justice Commission. Fitzgerald recommended that the CJC be an independent body
— independent from the police, the judiciary, the government and the opposition,
but reporting to a parliamentary committee. It was given the mission of
‘investigating and reducing the incidence of police misconduct and public sector
corruption, monitoring and reviewing reform of the police service, and playing a
central role in effective reform of the criminal justice system’.10 The CJC (now the
Crime and Misconduct Commission) continues to be a spur to public service
accountability. Its inquiries over the years have exposed accountability ‘sore spots’.
Consequently, all governments have attempted to either influence or reorder the
focus of the commission. The commission is the most public, and probably the most
6
7
8
9
10
Sir Joh was loathed and loved (2005).
Salusinszky (2009).
Fitzgerald (1989).
PC (1990), p 244.
PCJC (1997), p ii.
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GRIFFITH LAW REVIEW (2009) VOL 18 NO 3
testing, ground for the endurance of the ‘Fitzgerald spirit’, and has been a major aid
to achieving better government.11
The Fitzgerald vision for EARC was for that body to undertake an independent
and comprehensive review of administrative and electoral laws and procedures.12
EARC reviews began with the release of issues papers to stimulate debate, followed
by periods during which the public could make submissions — all of which were
published. Once EARC released its reports, the parliamentary committees took
further submissions before making recommendations to parliament. Notable EARC
proposals included the Peaceful Assembly Act, broadening the scope of judicial
review of administrative decisions, and reviews of the electoral system and local
government electoral boundaries.13 It was the EARC process that took Queensland
out of the era in which politics and public administration were largely
unaccountable.
What was most striking in the Queensland reform process was that a new
model for combatting corruption had been developed. Rather than rely upon a
single law and a single institution, existing institutions were strengthened and new
institutions were instituted to create a set of mutually supporting and mutually
checking institutions, agencies and laws that jointly sought to improve
governmental standards and combat corruption. Some of the reforms were versions
of those tried elsewhere — involving the creation or strengthening of institutions 14
or the passage of a package of administrative laws following the Commonwealth
model.
Some of the reforms were either unique to Queensland or very rare — the
Public Sector Ethics Act 1994 and its associated regime of ethical standard-setting;
the Legislative Standards Act 1992, which provided a means for the protection of
human rights in the legislative process rather than just a judicial backstop; a
powerful Scrutiny of Legislation Committee; an Integrity Commissioner to provide
advice on conflict of interest and potentially other ethical issues affecting ministers
and their advisers.15
Identifying and Popularising the New Model
I found this process fascinating, and in my various papers and seminars sought to
describe it. I called it an ‘ethics regime’.16 One of the strengths of this approach was
that it avoided creating a single over-arching institution to fight corruption. There
are dangers with a single, powerful institutional approach:
11
12
13
14
15
16
Preston et al (2002), p 128.
Preston et al (2002), p 104.
Preston et al (2002), p 127.
The Auditor-General, parliamentary committees, the Office of the Parliamentary
Counsel, the Public Sector Management Commission (which has evolved into the
Public Service Commission), the Ethical Standards Command of the Queensland Police
Service, the Office of Government Owned Corporations, the Director of Public
Prosecutions, Legal Aid, the Electoral Commission, the Ombudsman.
Preston et al (2002), p 156.
See, for example, Sampford (1994a, 1994b, 2000, 2001, 2002, 2005); Sampford and
Connors (2006); Sampford et al (2005); Sampford and Wood (1993).
SAMPFORD: FROM DEEP NORTH TO INTERNATIONAL GOVERNANCE EXEMPLAR
563
Such an institution might be so powerful as to be a threat in itself.
The corrupt only have to capture one institution to capture the fight against
corruption.
•
A single institution cannot address the problem from as many directions.
•
Combatting corruption is not enough — the goal is to make governments
effective and a multidirectional approach is more likely to succeed.
When ‘sleaze’ threatened to bring down the John Major government in the
United Kingdom, the government established a joint Select Committee on
Standards in Public Life chaired by Lord Nolan. When I outlined the Queensland
approach to Lord Nolan and his committee and committee staffers, they included a
version of the model in their own report.17 Of more lasting impact was his support
for this approach at the OECD and its public management (PUMA) group.18 These
organisations were involved in assisting new entrants to the EU to improve
governance standards. The OECD and PUMA called the approach an ‘ethics
infrastructure’, a term that was adopted in several jurisdictions and by the United
Nations.19 The idea, however, was most effectively proselytised by Transparency
International (TI).20 When its CEO, Jeremy Pope, visited Queensland, he proclaimed
that this was the way to fight corruption and coined the term ‘national integrity
system’,21 typically involving a number of ‘pillars’.22 TI and later the World Bank
and other aid agencies adopted this term and approach. The integrity system was
neither national nor particularly systematic, but the choice of the term ‘integrity
system’ rather than ‘anti-corruption’ system was inspired.
Corruption (the abuse of entrusted power for personal gain) is a derivative
concept and a derivative goal.23 One cannot know what an abuse is without knowing
what the legitimate uses of those powers are. Integrity (the use of entrusted power
•
•
17
18
19
20
21
22
23
Nolan (1995). I was the first person consulted by the Nolan Committee in 1994 and he
acknowledged the source of the Queensland example and the source of the advice in
addresses to the OECD in a workshop on Public Sector Ethics in November 1997, the
Ethics in the Public Service Network conference in Leiden in 1998 and in a lecture tour
of Australia in 1999.
OECD (1996, 1997a, 1997b, 1998).
UN (1990, 1997).
Pope (2000).
This story has been told many times by Jeremy Pope and others — most recently in an
ABC Background Briefing report,
www.abc.net.au/news/stories/2009/10/09/2710033.htm.
Legislature, Executive, Judiciary, Auditor-General, Ombudsman, Watchdog agencies,
public service, media, civil society, private sector and international actors —
traditionally shown as pillars of a Greek temple, though I later suggested a different
visual metaphor of a ‘bird’s nest’ in discussions and papers for the World Bank and
Transparency International. See Sampford et al (2005).
This is the most commonly used definition. There is an ongoing debate, however, about
corruption definitions — specifically, what defines a corrupt act and in what
circumstances. The definition of corruption is therefore complex and contested. For a
fuller discussion of the arguments, see for example Génaux (2004); Philp (1997, 2002);
von Alemann (2004); Sampford et al (2006).
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for publicly justified ends) is primary.24 While it is not true that all power corrupts,
it has to be recognised that it will not only attract those who wish to exercise it for
its publicly justified purpose, but also those who wish to use it for their own
purposes. ‘Personal’ gain is very widely construed. It extends beyond personal
enrichment and includes benefits to the power-holder’s family, associates, political
party 25 — indeed, anyone other than those who are the publicly intended
beneficiaries of that power.
If the only goal was to avoid government corruption, in theory perhaps that
could be achieved by not having government and, in practice, instituting anticorruption methods that encourage government inaction. The potential for
corruption is built into all institutions because of the dynamics of collective action
and agency.26 Institutions collect power, people and resources for publicly justified
purposes, but that concentration of powers can be used for other purposes.27 We
want effective institutions that deliver at least a significant proportion of the
benefits they claim to deliver.
The reason why we create and support governments, joint stock companies and
international NGOs is because it is believed that more can be achieved collectively
than individually with the pooling of people power and resources for shared goals.28
That decision, however, opens the possibility that institutional leaders may turn that
entrusted power to their own benefit or use against their citizens/stockholders/
bondholders.29
A NIS evolves to increase the probability that entrusted powers will be used
for its publicly justified and democratically endorsed ends, and reduce the
likelihood that those powers are abused. NIS will vary from state to state, with
similar functions being performed by different institutions. A NIS can vary in
completeness and effectiveness, but there is almost always some base upon which it
can be built.30
A New Insight: Corruption Systems
While National Integrity Systems31 were seen to be the answer to corruption,
Transparency International’s early comparative studies generated some surprising
24
25
26
27
28
29
30
31
Integrity is defined as the use of entrusted power for publicly justified ends. See Dobel
(1999); Sampford et al (2005).
In polities where very large donations are required for political campaigning (e.g. the
United States) or rewards for constituents (e.g. Japan), politicians may engage in corrupt
behaviour while not benefitting personally.
Heidenheimer (2004); Montinola and Jackman (2002).
Sampford (1990).
This approach is important when we examine the various domains of corruption that can
exist even within a strong democracy, and the potential effects. See, for example,
Warren (2004).
See Keohane (2006) for his vision of a pluralistic, global accountability system and his
analysis of the extent to which democratic principles can be applied to world politics
and the implications for combating corruption.
Sampford et al (2005); Pope (2008).
Transparency International (2000).
SAMPFORD: FROM DEEP NORTH TO INTERNATIONAL GOVERNANCE EXEMPLAR
565
results. While countries with stronger national integrity systems were generally less
corrupt than those with weak national integrity systems, the correlation was not as
great as might be imagined. Some countries with very low levels of corruption
seemed to lack institutions that TI’s model of a national integrity system seemed to
need. Some highly corrupt countries appeared to have all the elements of the TI
model — and some new ideas and improvements of their own that should have
made their integrity systems even more effective.
Unfortunately, the strength of a national integrity system is not the only
relevant variable determining the level of corruption.32 It is quite possible that the
more significant variable is the strength of the ‘national corruption system’ (NCS)
— which is, in many states, better organised, better resourced and more effective
than the NIS. This may explain why some states with apparently limited ‘integrity
systems’ are relatively free from corruption and some states with apparently
extensive ‘integrity systems’ remain highly corrupt. Coalitions of leaders are
needed to create, reinforce and integrate the institutions of the NIS and to
coordinate their activities.33 While a NIS may be seen as the best way to promote
integrity, the corrupt are often far more organised and in some states national
corruption systems may be better organised, better resourced and more effective —
with long-established patterns of behaviour, strong institutions, clear norms, and
effective positive and negative sanctions. The NCS will seek to disrupt and corrupt
the NIS. As a corollary, the NIS should positively react. It should not merely seek
to deter, detect and prosecute bribe-givers and bribe-takers but should first set out to
map and understand the corruption system then plan how to disrupt and destroy it.34
32
33
34
See Doig and McIvor (2003). This article builds on a Transparency International (TI)sponsored research study funded by the Dutch government into the National Integrity
System (NIS) in practice. It assesses the findings of the study to consider how the
approach can work in practice, and what the approach can reveal about the causes and
nature of corruption as well as the implications for reform.
See Sampford and Connors (2006). This was a major conclusion of the first World
Ethics Forum held in Oxford in 2006.
Note that the approach based on ethical standard-setting, legal regulation and
institutional reforms that have been variously called an ‘ethics regime’, an ‘ethics
infrastructure’ or a national integrity system concentrates on institutions and norms. I
am cautious about explanations of varying levels of corruption based on ‘culture’ for a
number of reasons. First, there seems little evidence that either the citizenry or public
service of relatively corrupt countries is in any way pleased about the level of
corruption. They may be resigned to corruption and even take part in it as a way to ‘feed
their families’. However, if given a hope of reform, they frequently demonstrate a
dislike of corruption that is heightened by their regular experience of it. Second, much
of the corruption involves the toxic interaction of different governmental systems, each
with its own logic and integrity (e.g. with the interaction of ‘big man’ local politics and
Westminster systems of government practised remotely at the capital). As I heard one
Papuan minister put it: ‘Swiss bank accounts are no part of traditional culture.’ Third,
using culture is as often an excuse by corrupt leaders for their behaviour, a justification
by Westerners for supposed superiority, or a counsel of despair for those wanting to
give up attempts at reform. Finally, even if culture is a key factor, it can rarely just be
changed directly. Eliciting ethical norms, passing formal laws, setting incentives, and
making corruption difficult and integrity easy are effective in combination when it
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Organised crime (whether gangsters or corrupt cliques) will always attempt to
suborn or intimidate police, judges and any official or institution within the NIS. A
corollary, however, is not always noted. The task of the NIS is not just to prosecute
corrupt individuals. It is to disrupt the corruption system so that it is difficult for it
to function. Corruption flourishes in well-established networks where trust is
present on both sides of the exchange relationship. This phenomenon is as old as
human civilisation, its forms subject to continual change and redefinition. Too
often, moral accusations are aimed at the failings of individuals, thus distracting
attention from institutional and structural patterns of corruption. Systemic,
pervasive sub-systems of corruption can exist, and indeed have existed, across a
range of historical periods and geographic areas, as well as religious, political and
economic systems. A key operating feature of corruption sub-systems is that they
are relatively stable networks that survive changes in personnel.35 Such networks
support the common good of particular elites or social groupings rather than uphold
the national public good. The failure of public trust leads to solidarity networks
within a state. It is important to understand how corrupt and unethical sub-systems
operate in order to reform and change them. We can certainly recognise a wellorganised corruption system in 1980s Queensland and in many other jurisdictions.
Revisiting Fitzgerald: An Object Lesson in the Destruction of a
Corruption System
The difference between Queensland and many other jurisdictions that suffered
under corruption systems is that the corruption system in Queensland is no more. 36
That this is so is not the result of the Fitzgerald-inspired EARC reforms. Long
before the integrity reforms were put in place, the state’s corruption system had
effectively been destroyed by the Fitzgerald Inquiry. That inquiry exposed the
system of corrupt deals and payments — from pimps paying off individual police
and developers paying bribes to intermediaries, to the chief of police, and the
Premier:
35
36
comes to reducing corruption. They may also change culture indirectly — almost
certainly the only way of so doing.
See Nielsen (2003). Nielsen identifies examples of exclusive corruption networks as
criminal organisations such as the Mafia and the Japanese Yakuza and more subtle
types of corruption networks, known as ‘crony capitalism’, as informal networks of
large family businesses and where government officials control activities such as large
loans from state bank that are not repaid, preferential government contracts, protected
monopolies, investment banking and brokerage conflicts of interest, auditing, and
consulting conflicts of interests.
This is not to say that corruption was completely eradicated. Pockets of corruption
persisted within the police service and within local government. However, the system of
corruption with senior police and ministers playing a pivotal role and protecting the rest
was at an end. When two ministers did appear to engage in abuse of power for personal
gain, they were prosecuted and jailed — with a new round of reforms to tighten the
system.
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The Inquiry revealed that over the years links had developed in Queensland
between criminal and political networks. It also showed that … crime and
corruption had become widespread across a range of activities including
bribery, prostitution, the operation of sex parlours and brothels, tax evasion,
illegal gambling, SP betting, the rorting of ministerial expenses, protection
rackets, money laundering, and probably drug running.37
The exposure was so complete that the corruption system operating within the state
was effectively destroyed and could no longer function in its previous form. In the
beginning, the inquiry probed allegations of police misconduct and activities but
eventually expanded to become a wide-ranging investigation into the entire
institutional framework of the state.
The methodology was instructive. Judicious grants of immunity were given to
those who were prepared to disclose their activities.38 While immunities allowed
certain witnesses to escape prosecution, without indemnities it is unlikely that
evidence would have become public.39 The inquiry started near the bottom of the
corruption chain, encouraging the ‘small fish’ to disclose in return for immunity
and then worked up the hierarchy of ‘bagmen’ until the whole picture was exposed.
At a certain point, it was announced that the inquiry was interested in hearing from
those who could tell them something they did not already know — and could offer
immunity from prosecution.40
Such strategies are not new. The key to success is to set incentives so that it
will be in the perceived best interests of most members of the corruption system to
disclose to preserve their interests. The risks to jobs, freedom and assets of keeping
silent are greater than the risks of disclosure. If those incentives are set correctly,
sufficient numbers will volunteer information and the rest will have an incentive to
do so because of the likelihood of exposure. This outcome was the experience of
the Fitzgerald Inquiry approach.
37
38
39
40
PC (1990), p 244.
Ray Whitrod (a former Queensland Police Commissioner whose attempts to eradicate
police corruption were blocked by Joh Bjelke-Petersen and whose resignation was
forced by the latter’s appointment of the corrupt Terry Lewis as his Deputy
Commissioner) in the Foreword to Phil Dickie’s book, The Road to Fitzgerald and
Beyond, wrote: ‘The revelations of the Fitzgerald Commission were unexpected because
of the sterility of earlier official inquiries. The conscientious and competent approach of
this commissioner must have dumbfounded many who thought themselves in no danger
of exposure.’ Cited in Dickie (1989), p viii.
Ransley (2001), p 7; Dickie (1989).
The admissions would not, of themselves, be admissible. The offer of immunity was
effectively an invitation ‘for the rats to leave the sinking ship’ — leaving ropes for them
to do so, but warning them not to hesitate in case someone else gave the same
information before them. The tactic worked because the individuals offered immunity
believed that the risks of non-cooperation were much greater than the risk of
cooperation.
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Three Ways to Destroy a National Corruption System
There are many powerful opponents of reform. Influential institutions and
individuals resist any interference with their privileges. In order to cause a mass
exodus from an entrenched corruption system, a seminal event or defining process
is needed to alter expectations and incentives that are sufficient to encourage
significant numbers of individuals to desert the corruption system and assist the
integrity system in exposing and destroying it. Fitzgerald successfully pursued one.
I would like to suggest that the same logic could be applied to make amnesties or
truth and reconciliation commissions effective means to the same end.
Sequential investigation with immunity
The Fitzgerald model operated under a system of sequential investigation, and
offered general immunity as part of a public inquiry. The visibility of the hearings
made them a powerful form of public disgrace for indemnity applicants that in
important ways mimicked the exposure of a criminal trial. However, the real goal is
to get sufficient ‘little fish’ to come forward to expose the ‘big fish’ and help the
public and prosecutors understand what the corruption system is and how it works,
and thus enable to prosecutors to set about dismantling it.
Amnesties
An amnesty for corruption-related offences would offer a much broader remedy in
which all those who have been engaged in corruption but admit to their part in it are
given immunity from prosecution and, depending on the extent of their corruption
and their position, may even keep their jobs or keep some of their ill-gotten gains.
However, the terms of the amnesty should not merely involve forgiveness for any
corruption admitted. It should be based on the principle that full immunity is given
if there is full disclosure. Failure to declare all means that no immunity is provided.
Selective reporting of corruption is not acceptable.
An extra incentive to disclose could be in allowing those who disclose to keep
a proportion of the proceeds of the corruption and to receive a proportion of the
proceeds of corruption of others which is proven. Three different kinds of case are
envisaged for such amnesties:
•
‘small fish’, for whom corruption was what gave them a living wage —
those engaging in full disclosure will not have to disgorge proceeds of
corruption and keep their jobs;
•
‘medium-size fish’, for whom corruption was genuinely profitable and
gave them more income than they could reasonably have expected;
•
some very ‘big fish’, who might not be offered amnesty at all — we can
find out about them from the disclosures of others. If exempted, it would
offend our sensibilities to allow them to go free — for example, those who
took the most, or held particular public office, or who had taken funds
beyond a certain amount.
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One could even imagine a formula such as the following:41
Amount of corrupt payments disclosed
$0–50,000
$50–100,000
$100,000–1,000,000
$1–10 million
$10–50 million
$50–100 million
$100–500 million
$500+ million
% age disgorged
0
10
20
30
40
50
75
95
Truth and Reconciliation Commissions
The third mechanism would be a form of Truth and Reconciliation Commission
(TRC).42 TRCs are one important element in the growing transnational institutional
apparatus behind international human rights and humanitarian law. Truth
Commissions are not courts of law, but resemble them in important aspects: some
have had subpoena and forced seizure powers; many have published reports
apportioning individual responsibility; a few have awarded compensatory damages
and submitted information to courts.43 Such a commission should operate with an
institutional form of general amnesty 44 and within a public process that ensures
procedural fairness.45
TRCs have a number of advantages over sequential investigation and
amnesties. They are able to identify far more perpetrators than a reliance on
investigations and prosecutions would have uncovered.46 Second, they allow for a
greater public and systematic account of corruption in a jurisdiction than an
amnesty, and allow for further investigation beyond merely a receipt of the
information under an amnesty. Finally, TRCs can be very useful and potentially
transformative where there is a practice or collective experience that most want to
put behind them. It allows national recognition of a form of wrongdoing and a
41
42
43
44
45
46
This formula operates similarly to a tax on corrupt payments with a steeply progressive
tax rate. We may have a higher rate of disgorging for officials who keep their jobs. One
might also provide a percentage of the sums recovered from others who had not
disclosed but of whose corrupt activity they had provided evidence.
‘Truth commissions invariably, and appropriately, focus primarily on direct acts of
physical violence. However, some have examined other forms of repression too,
including expropriation of property without compensation, unjust dismissal and
government harassment, and forced displacement.’ Freeman (2006), p 14.
Freeman (2006).
It is not necessary to offer amnesty to all. Those who have stolen more than a certain
amount or those who have held particular kinds of office — for example, judges —
should perhaps be excluded.
See Freeman (2006). He sets forth standards of procedural fairness aimed at protecting
the rights and interests of those who come into contact with Truth Commissions.
Blumenson (2006).
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national decision to move on from it — with perpetrators admitting wrongdoing
individually and collectively, and seeking forgiveness from victims individually and
collectively. Whereas the forms of wrong doing covered by TRCs are generally
concerned with physical violence, they could achieve the abovementioned ends for
corruption.
As with the version of amnesty suggested, full disclosure should be required to
secure immunity. However, it is also useful to operate on the principle that the first
to report should obtain more favourable treatment.47 This would avoid creating an
incentive to hang back and see what else comes out.
The different mechanisms would require different levels of support. The
sequential investigation model requires the support of key prosecutors or corruption
fighters. It will also require a means for protecting those who have disclosed
significant evidence of corruption (the whistleblowers). This is especially the case
in countries where violence is used to silence opponents. In such cases, the
protection systems for those who disclose should be, literally and figuratively,
‘bullet proof’.
Amnesties and TRCs of the kinds suggested would require more widespread
support than sequential investigations. They would require:
•
strong leaders committed to reform, needed to bring about the cultural
change that is required;
•
a real likelihood that prosecutions will be successful — preferably from
recent and public experience;
•
procedural fairness;
•
sufficient investigatory resources to follow up the information generated;
•
the political will to drive and support the change, which may be generated
by the process (as in Queensland) rather than preceding it. In some cases,
public demands may precede political will.
Generalising the Methodology: The Prisonerʼs Dilemma48 Writ Large
All three methods (the sequential investigation by Fitzgerald and the form of
amnesty and TRC suggested) are based on an exchange between the individually
corrupt and the state (and its citizens). The individuals have information that the
state wants — knowledge of individual corruption and of how the corruption
system operates. The state has the capacity to grant immunity, and with it liberty.
The individuals also have something that they would like to retain and that the state
would like returned — the proceeds of corruption. One of the central goals of all
three methods of smashing corruption is to achieve an exchange of information for
47
48
A system could exist where a sliding scale operates so that a witness before such a
commission may get to keep some of the proceeds of corruption, depending on whether
they were a ‘small fish’ or a ‘big fish’ in the corruption system. For clean individuals
who report what others have done, a reward system could apply. In the case of
wrongdoers, future unlawful activity will produce full prosecution for previously
admitted corruption and any future corruption.
See Prisoner’s Dilemma (2007): ‘Much of the contemporary literature has focused on
identifying conditions under which players would or should make the “cooperative”
move corresponding to remaining silent.’
SAMPFORD: FROM DEEP NORTH TO INTERNATIONAL GOVERNANCE EXEMPLAR
571
retained freedom. While the state would like a return of ill-gotten gains, it is
important to recognise that its greatest interest is in destroying the corruption
system, and it is better to receive a smaller or even token amount if this can be
achieved.
If the corruption system is strong, then neither the ‘big fish’ nor the ‘small
fish’ will see a need to admit that they were involved in corruption. The ‘big fish’
feel a sense of impunity because there are a number of defences they can deploy
before they have to see the inside of a prison cell. They can:
•
bribe a prosecutor;
•
threaten any witnesses or co-collaborators who are tempted to give
evidence against them;
•
kill the witness if the threat is unsuccessful;
•
bribe a judge;
•
secure political protection;
•
obtain a pardon.
The ‘small fish’ have an incentive to stay silent because the proceeds of
corruption, while small, are important to them because they receive so little. More
importantly, there is the risk to them. The goal must be to achieve a radical change
in the incentives and disincentives surrounding disclosure. It must be apparent that
the risk of exposure is significant and the rewards for disclosure outweigh the risk
of remaining silent. If possible, it should simply be too hazardous for rational
officials or rational business executives to remain silent and compliant.
For this to happen, it is essential that there really is a hazard — that
prosecutions can be carried out successfully. The best way to demonstrate this is for
recent prosecutions to have succeeded, meaning that it might be better to start with
sequential investigation rather than an amnesty/TRC. The former can make the
latter effective. However, the latter without the former might mean that the threat of
prosecution and conviction are hollow.
Provided the threat of prosecution is credible, one way to achieve the right
balance of incentives is to build on the fact that corruption almost universally
requires more than one person. The state should try to create a set of incentives and
disincentives so that, in the corrupt individual’s mind, disclosure benefits them no
matter what their accomplices do, while silence benefits the others no matter what
that player does. The state should seek to create something analogous to the
prisoner’s dilemma49 — without the dilemma.
If the majority of those involved (generally ‘small fish’) will keep most of the
assets and lifestyle they have and are not likely to be killed for such revelations,
49
‘A slightly different interpretation takes the game to represent a choice between selfish
behaviour and socially desirable altruism. The move corresponding to confession
benefits the actor, no matter what the other does, while the move corresponding to
silence benefits the other player no matter what that player does. Benefiting oneself is
not always wrong of course, and benefiting others at the expense of oneself is not
always morally required, but in the prisoner’s dilemma game both players prefer the
outcome with the altruistic moves to that with the selfish moves. This observation has
led David Gaunthierx and others to take the Prisoner’s Dilemma to say something
important about the nature of morality.’ Prisoner’s Dilemma (2007)
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GRIFFITH LAW REVIEW (2009) VOL 18 NO 3
then it is in their economic interest to disclose. Failure to do so would cost liberty,
assets and lifestyle. Silence achieves little if everyone else involved is silent too, but
is catastrophic if at least one other person discloses.
The ‘bigger fish’ will have to disgorge some of their gains but still retain
enough to maintain a more modest but desirable lifestyle. However, the more they
have gained, the more people with whom they are likely to have had corrupt
dealings. Only one of them need disclose for the ‘bigger fish’ to lose everything.
The approach to the ‘biggest fish’ may vary widely depending on the
confidence of securing information from ‘smaller fry’. One may want to maximise
the chance of securing the truth and achieving reconciliation. On the other hand, if
enough evidence can be secured from the others, there may be no need for them to
disclose for the public to know. They will then become symbols of the crushing of
corruption (the system’s Sir Terry Lewis) 50 and possibly a useful source of revenue.
Such calculations should be made and will not be easy. The one thing I will
say is that it is better to err on the side of generosity. The systemic benefits of
identifying and stopping corruption clearly make it worthwhile. If the incentives are
structured so that rational people would be expected to choose the path of
disclosure, then it operates at two levels as a ‘double reason for action’. The
favourable balance of incentives and disincentives means that an individual is likely
to disclose. However, the fact that he or she knows it is in the interests of others
who were involved in their corruption and who know of their involvement gives a
further reason for deciding to disclose. This is what generates such a powerful
incentive to disclose and would make a corruption TRC so much more effective.
Conclusion
Tony Fitzgerald is rightly recognised for the set of reforms that were introduced in
Queensland following the EARC process he suggested. This was his main goal and
his most lasting legacy. As he explained:
The main object of the report and its recommendations is to bring about
improved systems and structures. The past misdeeds of individuals are of less
concern, except as a basis for learning for the future.51
And in a later interview:
[I]t would be mistaken to believe that all or even a significant part of the
misconduct was exposed. My intension was rather to try to establish better
systems for the future and a basis for changed attitudes in the community.52
The EARC process systematically overhauled existing public institutions and,
where there were institutional gaps, created new ones. The presence of many
50
51
52
The Queensland Commissioner of Police, who succeeded Ray Whitrod, was the
principal beneficiary of police corruption but lost his money, his reputation, his freedom
and his knighthood.
Fitzgerald (1989), p 8.
Fitzgerald, cited in Coleman (1989), p 3.
SAMPFORD: FROM DEEP NORTH TO INTERNATIONAL GOVERNANCE EXEMPLAR
573
interconnected integrity bodies and strategies facilitates integrity as a part of daily
life in our major organisations, not least because diverse institutions are also able to
hold each other accountable.53 Since then, many jurisdictions have developed
‘national integrity systems’ that rely not on one major anti-corruption institution to
protect public integrity, but rather on an array of institutions and procedures.54 In
this way, Queensland moved from being seen as an ethical bad joke to being
viewed as a global exemplar. The importance of this new approach and its
replacement of the previously predominant Hong Kong model have been so widely
recognised that Fitzgerald’s prior achievement and its general applicability may not
be recognised.
The biggest variable in determining levels of corruption and the success of
anti-corruption campaigns is the strength of the ‘national corruption system’ (NCS)
— which is, in many states, better organised, better resourced and more effective
than the NIS. This explains why some states with apparently limited ‘integrity
systems’ are relatively free from corruption, and some states with apparently
extensive ‘integrity systems’ remain highly corrupt.
The success of Fitzgerald-inspired EARC reforms should not obscure Tony
Fitzgerald’s earlier triumph: the exposure and destruction of the Queensland
corruption system and the way he went about it. Indeed, further reflection
demonstrates that the methodology behind his approach is applicable to three ways
of tackling corruption head on: rolling up the system with judicious grants of
immunity, amnesties and TRCs. The method or methods that are chosen should
depend upon the internal politics of the state concerned. Whichever is chosen, they
would do well to look to Tony Fitzgerald, the seminal service he performed for
Queensland and the lessons that can be learned from the way in which he did it.
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Legislation
Public Sector Ethics Act 1994
Legislative Standards Act 1992
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